Md. flier ban may be unconstitutional

A Maryland judge’s ban on distribution of campaign literature that state officials contend is misleading likely amounts to a prior restraint that runs afoul of the First Amendment, two prominent lawyers in the field told POLITICO.

Acting on an emergency request from Maryland Attorney General Doug Gansler, Prince George’s County Circuit Court Judge Larnzell Martin Jr. issued an order Tuesday evening barring anyone from disseminating a sample ballot for the Sept. 14 primary that was recently mailed to Democratic voters and distributed at an early voting site in Oxon Hill, Md.

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"No materials in the form attached shall be distributed by mail, in person or otherwise under penalty of law," Martin wrote in the temporary restraining order. “Immediate, substantial and irreparable harm in the form of presentation of false and misleading advocacy information to the electorate will result if such violations were to continue.”

The flier, styled as an "OFFICIAL DEMOCRATIC BALLOT," contains at least one error, listing a candidate as running for a county office she isn't running for. The main objection from some local candidates, however, is that photos of Democratic Gov. Martin O'Malley, Democratic Rep. Steny Hoyer and others on the pamphlet suggest the men endorse the candidates marked inside, which in several cases is not true.

But attorneys said Martin acted too hastily in banning the brochure before hearing from whoever produced it.

“If the injunction is a preliminary injunction entered without a full trial on the merits, then it is an unconstitutional prior restraint,” Eugene Volokh, a professor of First Amendment law at the UCLA School of Law, wrote in an e-mail.

“The procedure in court, normally, is to punish people for violating a law, whether it’s campaign finance or postal law, and not for courts to issue injunctions preventing speech,” said Jan Baran, a campaign finance lawyer at Wiley Rein in Washington. “Prior restraints are actively discouraged and rarely permitted. … To prevent someone from engaging in speech, that’s highly unusual and almost always improper as a constitutional matter.”

Gansler’s office said it views the flier as beyond the scope of the First Amendment because it is “fraudulent.” The office notes that the group listed as authorizing the flier, “Citizens for Change, Charles Summers, Treasurer,” isn’t registered with the state and may not exist. The emergency motion Gansler filed to obtain the restraining order also claims that the flier “falsely indicates that [some officials] endorsed specified candidates for public office.”

“The prior restraint doctrine comes into play only when you have a First Amendment right. The court here found you have no First Amendment right to commit fraud,” Gansler aide Will Brockman said. One official also noted that quick action was probably the only effective way to counter the flier since investigators haven’t yet figured out who created the materials, and the election is less than a week away. Another official noted that a specific Maryland statute gives prosecutors the right to seek an injunction to prevent any violation of the state’s election laws.

Baran said that doesn’t mean such a procedure complies with the First Amendment. “There clearly is a law that allows [Gansler] to do what he did. Whether that law is constitutional is a separate issue. … Laws get struck down all the time,” Baran said.

The Washington Post raised the specter of police seizing campaign literature when it reported Wednesday that Larnzell authorized the country sheriff to confiscate the fliers from anyone who was handing them out. But the judge’s written order does not discuss seizing fliers, and Gansler’s office told POLITICO the judge had given no such direction.